Planet Money - How The Rat Blew Up

Episode Date: December 5, 2020

Unions have been putting giant inflatable rats in front of businesses for years. Now businesses are trying to deflate them, in court. | Subscribe to our weekly newsletter here.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

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Satisfaction guaranteed. This is Planet Money from NPR. So, have you represented a giant inflatable rat in court? I have. One of my favorite clients, absolutely. This is Tamir Rosenblum. He's a lawyer who represents a union of construction laborers in New York City. And like a lot of construction unions around the country, Tamir's union owns a giant inflatable rat. And they set up this rat outside businesses they're fighting with, on the sidewalk or on the back of a flatbed truck.

The idea is to publicly shame the business. These inflatable rats have red eyes and sharp teeth. They've got these gross-looking scabs on their bellies, and they're standing up on their hind legs with their claws out. And these rats are huge. Some of them are taller than a house, and there are hundreds of them all around the country. Unions love to use Scabby the Rat to bring attention to their cause. They love it in part because lots of business owners hate it. We've had times when the police confiscated the rat. We've had times when the rat was stabbed. So what happened?

So I was representing a local of ours on Long Island, and it was at a car dealership. And, you know, that's, yeah, some guys showed up, you know, looking like they were going to, you know, do some harm to somebody. But unfortunately, their target was the rat. Sometimes Scabby is attacked by knife-wielding thugs, but more often by lawyers. Tamir figures he's had at least 50 scabby-related cases. The rat's latest brush with trouble started last year outside a ShopRite supermarket in Staten Island, New York. The owner of the supermarket was building a new store a few miles away. And at least some of the workers building that store were not union workers. So the union Tamir represents was staging a protest.

We're on the public sidewalk outside the property. We were very careful not to block any traffic, not to block pedestrians. We had the rat there. So you're out there. You got how big is the rat you got at Staten Island? I think we had a medium sized one out there. It didn't look too enormous, but, you know, definitely taller than me. There are videos of this protest that were submitted in court.

And in them, you see a group of about 15 or 20 people. They're standing on the sidewalk between a small fence and a highway. And they actually have two inflatables up. There's the rat and a giant cockroach. And the protesters are yelling into bullhorns. yelling into bullhorns. New York City is a union, sir! New York City is a union, sir!

Not surprisingly, the owners of that shop, right, did not like having the union and a giant rat protesting outside their store. They did not like it so much that they complained to their lawyer. Their lawyer complained to the federal government, and the federal government brought a case against the rat. This is one of several rat cases the government is working on right now. They're arguing that Scabby the rat is not just annoying and unsightly, but that in many cases, it is illegal under federal law. They've let a bunch of these rat cases sort of pool in the

administrative process. And now they're effectively... Like a king rat? An omnibus rat? Yeah, it's just... A rat of all the rats? Rato de tutti ratti? Yeah, this rat plus that rat, all sort of in sum are bigger than their parts, and you put them all together, and we just got to exterminate this vermin. Hello, and welcome to Planet Money. I'm Amanda Aronchik. And I'm Jacob Goldstein. Today on the show, the rise and possible fall of Scabby the Rat. Today on the show, the rise and possible fall of Scabby the Rat. Scabby the Rat was dreamt up in the late 1980s by a guy named Jim Sweeney when he was in his 20s. I was that 80s guy.

He'd wear acid-washed jeans. He had a bad mustache. That's a contradiction in terms. He worked in construction like his immigrant father and his uncle before him. And like them, he is and was a union guy, member of the International Union of Operating Engineers, Local 150, just outside Chicago. We're a union of around 9,000 members, roughly. And we were on the decline. Remember, this is the Reagan era. And a lot of the labor movement was going into an entrenching mode. President Reagan famously fired thousands of air traffic controllers who went on strike. And it was a moment when it felt like public opinion was turning against unions, and in particular against strikes.

Now, around this time, Jim gets hired by his local, and his boss tells him the union needs to come up with new tactics. I was the first organizer hired by the union, oh my goodness, in at least 50, 60 years at that point. So Jim starts going to all these meetings with people who own businesses and who finance big construction jobs. And he has this realization. We figured out very quickly that they are very sensitive to being publicly shamed. Businesses don't want to be called out as anti-union. It's embarrassing because most people support unions.

So Jim's thinking, what could we do to really shame businesses that hire non-union workers? And he thinks of this old union term, rat contractor. The idea of the rat contractor came up who don't take care of their workers, who abuse their workers. I go, well, why don't we just start using rats? They start with a little picket sign. Jim's girlfriend, now wife, drew a rat on it. But right away, they want to get bigger, more ratty. So then it was, you know what we need? We need to get some rat suits. Somebody knew somebody who is in costume design. And so Jim and this guy, Bob, who worked with Jim, they go to the costume designer and ask for rat suits. So we had two rat suits with rat heads and big rat tail and rat hands.

And we would use that on the picket line. Well, that really drew attention to our cause. Who wore the suits? Jim, did you wear the suits? It was me and Bob. And is it comfortable to wear that costume? No. And in the summer, it would kill you. And it got to the point very quickly where the rat itself, by putting it on, was a very gamey smell. Oh, it was horrible. It absolutely was. Yet, as gamey, as ratty as they smelled, Jim and Bob wore the suits all the time to picket lines, to demonstrations.

They would drive up in an old yellow Chevy Impala with rats painted on the side. And then there was the crowning glory, an inflatable rat. He was only about three feet in height, and he ascended out of the roof of the Impala. We put a black travel case in the top. We put him inside, and from the inside of the car, we had the ability to turn a valve, and he filled with air, and he was on top of the car. They called themselves the Rat Patrol, had a contest to name the rat, gave a satin union jacket to the guy who came up with the winning entry, Scabby.

A scab, by the way, is a non-union worker who replaces a union worker during a strike. All of a sudden, contractors were going, all right, I don't need this. You know, they just hated this rat and this whole idea of the rat, which said, well, we got to go bigger. Literally a bigger rat. And as it happens, right near local 150's office, there was this car dealership lot. And they had their first big balloon. It was a gorilla. And we went over there and we go, oh, my God, could we get a scabby that big? Of course, we had to go to our boss and tell him why back then we needed to spend $5,000 building this giant rat.

And he agreed with us and went along. Jim says they took their inflatable rat idea to a local balloon company. And from there, the idea blew up. There is, by the way, there is, by the way, another union that claims to have come up with the idea for the rat. But Jim came with documentary proof. So we went with his story. Sorry, International Union of Bricklayers and Allied Craft Workers. documentary proof, so we went with his story. Sorry, International Union of Bricklayers and Allied Craft Workers.

In any case, by the 1990s, scabby the inflatable rat became something unions across the country were calling up and ordering from that balloon shop. They could get the 8-foot scabby, the 15-foot scabby, or if they wanted to go big, the 25-foot scabby. Do you remember when you realized that scabby had spread far and wide? It was the Sopranos. It was in an episode that first aired in 2002. Three of Tony Soprano's guys are at a construction site. They're sitting at a table drinking coffee, sunning themselves, when a Jeep pulls up and a guy in a union jacket gets out.

Whoa, whoa. What's going on? You're the foreman? Dave Fusco. I'm the business agent for Local 87 Laborers. It's come to our attention this site is employing a substantial number of non-union laborers in violation of our master contract. Come on, what the f***? Hitched to the back of the Jeep is a giant inflatable rat.

I'm guessing it's a 15-footer. I'm sitting there with my wife, and we're watching. I'm going, do you see who's on TV? That guy you drew on that little picket sign back in 1987. He made it big time. By the time Scabby showed up on HBO, the people and companies that were the targets of Scabby, contractors, real estate developers, had been complaining for a while about the rat. You know, it seemed kind of menacing.

People didn't want it outside their building. So they started asking their lawyers, is there something we can do about this rat? And so in 2002, Tamir Rosenblum, the lawyer from that Scabby case we talked about at the beginning of the show, he got a letter from a government lawyer. This was not long after the rat was on The Sopranos. That letter basically articulates a new position on

The Rat, saying that it's coercive and citing a Sopranos episode. Wait, wait. So what did you think when you saw this legal document from this very senior person citing the Sopranos? I, you know, it's like I'm both astonished and then got my back up because they're as crazy as it is. They're serious. They're really serious. This was during the George W. Bush administration. Tamir says Republican administrations try to limit what they call aggressive union tactics. And they seem to really dislike the rat. That case where the government mentioned the Sopranos wound up getting settled,

but the rat kept getting into legal trouble. Tamir's latest rat case, the one at the Staten Island Shoprite, is part of the government's latest push against scabby. And it could be a big deal for unions all around the country. The essential thing, legally speaking, about this case is actually where the union went to protest with the rat. They did not protest outside that ShopRite construction site that was using the non-union labor. Instead, they went to a different ShopRite owned by the same family. If what you think is the problem is the new building that's going up,

why not go protest in front of the new building that's going up? That's where the problem is. That's not where the people are. We're making a public message, right? Like we're not limited to having to do the typical things people associate with unions, which is show up at the site of construction and walk back and forth with a picket sign. And we are a modern union, and we participate in public conversations. And part of that is to get out there and tell the public. So, you know, how many people are shopping at a half-built shop, right? Like nobody,

right? The people are at the open one. So that's an interesting distinction you draw between like the old fashioned union, which is like walking the picket in front of whatever, General Motors in Flint, Michigan, versus the modern one, which is more of like part of the union strategy is essentially a PR campaign. Like we got to get the public's attention, like a giant inflatable rat seems useful in that kind of modern work. Yeah, no, 100%. And I think we've over time grown into that. We have a presence on social media. I'm on your show. So the union says what it's doing here is not a picket line. In fact, the workers at this grocery store are in their own union. What Tamir's union is doing is basically PR to bring bad publicity to the family that owns the grocery

store. And this fact, the fact that this was not a picket line at the site they objected to, but a protest at a different location, that turns out to be key. Because the law, federal labor law, treats those two things, a picket line and a protest, really differently. We talked about this with Mark Gaston Pierce. He used to be the chairman of the National Labor Relations Board, the NLRB, during the Obama administration. When you look at the history of labor relations in this country, you know that it was born out of conflict. Quick aside on the historical context here. The NLRB was created back in the 1930s when there were hundreds of strikes every year.

Sometimes they would turn violent. So Congress passed a law that gave workers the right to form unions, and it gave the NLRB the job of trying to keep the peace between unions and management. Today, the NLRB deals with the fights over scabby. Okay, end of the aside, back to that central scabby question. What is the difference between a picket line and a protest? Mark says, first, think of the classic old school union picket line at a factory or at a construction site. If they have a direct dispute with the facility, the union can picket back and forth. They can patrol back and forth in front of the entrances to the place.

The purpose of a picket line is to tell people, and in particular to tell workers, hey, don't go in here. You know, don't go work at this business until the union's demands are met. And there are a lot of people, customers and workers, who don't want to cross a picket line out of solidarity. And because of all this, because of this very specific history of what a picket line means, and even because of the history of violence associated with early picket lines, American labor law treats picket lines differently than other kinds of protests. It treats picket lines as a very specific signal about a conflict between workers and a business, this business that they're picketing in front of right here. So under federal law, you cannot have a picket line wherever you want to. Workers are not allowed to picket locations other than the ones they have

a direct problem with. In the case of that ShopRite on Staten Island, the union could picket the construction site where a contractor was using non-union workers, but the union could not legally picket at some other ShopRite. And so the owner sees these union members at some other ShopRite, another store he owns, which is a few miles away from the one being built, sees these union members at some other shop, right? Another store he owns, which is a few miles away from the one being built. Sees these union members with their inflatable rat outside the store, and he gets his lawyer to go to the NLRB and say, hey, these guys are picketing outside my store. They can't do that. The lawyer that represents the owner wouldn't talk with us about the case. But Mark explained the argument that business owners typically make in this kind of case, where unions protest outside of business with big balloon rats and signs. Inflatables and

banners are scary and intimidating. They are the functional equivalent of picketing because they are a symbolic confrontational barrier which violates certain provisions of the National Labor Relations Act. There's even a special term for this kind of thing that is not really a picket line, but sends the same message as a picket line. Signal picketing. According to Mark, people who don't like scabby will say, Scabby the rat is intimidating and creating signal picketing where picketing is not supposed to be taking place. So the key question in the ShopRite case is, is it workers engaging in a protest, which they're free to do under the First Amendment, or is it a picket line, subject to very specific limitations?

The store says, it's a picket line. Tamir says, That's not a picket line. We know when we're picketing. That it's a picket line. Tamir says that's not a picket line. We know when we're picketing. That's not a picket line. And what would make it a picket line? We try to stop workers from going in. We try to do something aggressive to stop workers from going in. Pace back and forth, you know, say things to workers like, you know, I don't think we do it these days, you know, disparaging them, but, you know, you know, I don't think we do it these days, you know, disparaging them, but, you know, you know, do the right thing, turn around, don't come in here. You know, we

make it active. We make it an active effort to turn people around. But that is not what goes on when you just put up a rat. And the judge in the case agreed with Tamir. He said what the union was doing was not a picket. Instead, the judge said it was just a protest. People standing on a public sidewalk with a giant rat exercising their First Amendment rights to free speech. And the union kept bringing the rat to that shop right. But that was not quite the end of the story. Remember when Tamir talked about the federal government letting all of the rat cases pool up? What he meant is this. The National Labor Relations Board may use these cases to rewrite the policy. They may say that putting up a big inflatable rat outside a store is intimidating and coercive,

that it's illegal signal picketing. And if they do change the policy, Tamir says he will go to court and say that this new anti-rat policy is a violation of the First Amendment. Then it'll be up to the court to decide. It may not come to that, though. The general counsel at the NLRB, who has been pushing the anti-rat policy, will almost certainly be replaced next year when his term ends. His successor will be chosen by Joe Biden. His successor will be chosen by Joe Biden. The best way to support Planet Money is to donate to your local NPR station. You can do that at donate.npr.org slash planetmoney.

Again, donate.npr.org slash planetmoney. You can also email us at planetmoneyatnpr.org. Full disclosure, Jacob and I are both members of a union, Screen Actors Guild, and the American Federation of Television and Radio Artists. As far as we know, our local does not own a rat. You can also find us on Twitter, Facebook, Instagram, and TikTok. So Planet Money TikTok I loved this week, in which our own Jack Corbett is trying to sell his beat-up car. Includes a very sketchy used BMW. He really is tall, by the way.

Surprisingly tall. Today's show was produced by James Sneed. It was edited by Bryant Erstadt. Alex Goldmark is our supervising producer. I'm Jacob Goldstein. And I'm Amanda Aronchik. This is NPR. Thanks for listening.

You got to tie it up? Got to tie it up because the wind. If not the wind, that ride will be on Fifth Avenue. Has Scabby changed over the years? Scabby pretty much stays the same, but our new one is a lot prettier. This is one of our older ones. We don't like to get rid of them until we'll tape them up. We'll put a little tape on them. You know, we'll do anything we can to not get rid of our Scabby. You know, we'll do anything we can to not get rid of Ask Abby. And a special thanks to our funder, the Alfred P. Sloan Foundation, for helping to support this podcast.